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63d Congress! senate /Document 

1st Session J &h.jnai£, | N< ^ 



The 
Democracy of Abraham Lincoln 



ADDRESS BY 
HENRY CABOT LODGE 

BEFORE THE STUDENTS OF BOSTON 

UNIVERSITY SCHOOL OF LAW 

ON MARCH 14, 1913 




PRESENTED BY MR. ROOT 
May 5, 1913.— Ordered to be printed 



WASHINGTON 
1913 



.LSI 5 




D. OF D. 
MAY 23 1913 






THE DEMOCRACY OF ABRAHAM LINCOLN. 



Address to the students of Boston University School of Law, March I l. 1913. 
By Hon. Henry Cabot Lodge. 



Iii his History of Twenty-five Years Sir Spencer Walpole says: 

Yet, perhaps, of all the men horn to the Anglo-Saxon race in the nineteenth century, 
Mr. Lincoln deserves the highest place in history. No man ever rose more quickly 
to the dignity of a great position. No man ever displayed more moderation in counsel, 
or more resolution in administration, or held a calmer or steadier course. Through 
the channel of difficulty and danger he kept his rudder true. 

This is high praise, but I think that we may go a step further. 
As the nineteenth century recedes into the past it becomes constantly 
more apparent that the three great events of that period, the three 
great facts with a supreme influence upon western civilization ami 
upon the world, were the preservation of the American Union, the 
consolidation of Germany, and the unification of Italy. With these 
three events the names of three men are indissolubly associated — 
Lincoln, Cavour, and Bismarck. They stand forth as embodying 
the cause of national unity in the United States, in Italy, and in 
Germany. They were the leaders, the directing minds in the mighty 
conflicts which produced the great results, and they loom ever 
larger and more distinct as the years pass by like high mountain 
peaks, which at a distance separate themselves from the confused 
masses of the range from which they rise. I have mentioned these 
three great men in the order in which, as it seems to me, they stand, 
and as I think they will stand when the final account is made up. 
But comparisons are needless. The greatness of Abraham Lincoln 
is admitted by the world, and his place in history is assured. Vet 
to us he has a significance and an importance which he can not have 
to other people. It is impossible to translate a great poem with- 
out losing in some degree the ineffable quality, the final perfec- 
tion which it possesses in the language in which it was written. 
In its native speech the verse is wedded to the form and to the 
words, and has tones in its voice which only those who are "to the 
manner born" can hear. So Lincoln, whose life, rightly considered, 
was a great poem, speaks to his own people as he does to no other. 
What he was and what he did and said is all part of our national 
life and of our thoughts as well. We see in him the man win led in 
the battle which resulted in a united country, and we have watched 
his crescent fame as it has mounted ever higher with the incessant 
examination of his life and character. Xo record has ever leaped 
to light by which he could be shamed. Apart from all comparisons 
it is at least certain that he is the greatest figure yel produced by 

1 History of Twenty-five Years, vol. 11, p. 05. 



4 THE DEMOCRACY OF ABRAHAM LINCOLN. 

modern democracy which began its (inward march at the little 
bridge in Concord. If ever a man lived who understood and loved 
the people to whom he gave his life, Lincoln was that man. In him 
no one lias a monopoly; he is not now the property of any sect or 
any party. His fame is the heritage of the people of the United 
States, and as Stanton said, standing by his deathbed, "He belongs 
to the ages. " 

For all these reasons, it seems to me, in these days <.f agitation 
ami disquiet, when the fundamental principles upon which our 
Government rests and has always rested are assailed, that nothing 
could be more profitable and more enlightening than to know just 
what Lincoln's opinions were as to democracy and the true principles 
of free government. I am well aware that objection may be made to 
Lincoln, as an authority for our guidance, of the same character as the 
one brought against the framers of the Constitution, which is that he 
died nearly half a century ago and that, therefore, however excellent 
he was in his own day find generation, he is now out of date as a 
guide in public questions because all conditions have so completely 
changed. It is quite true that Lincoln, like Washington, never 
saw a telephone, an automobile, or a flying machine, and that economic 
conditions as well as those of business and finance have been radically 
altered since his day. But this is really an inept objection because the 
subject upon which we seek to know his thoughts concerns the relation 
of human nature to certain forms and principles of government among 
men, most of which were as familiar to the speculations of Plato and 
Aristotle as they are to us; some of which are older than recorded 
history while the very youngest have been known, discussed, and 
experimented with for centuries. So I think we may dismiss the 
suggestion that Lincoln is antiquated and realize that upon the prin- 
ciples of free 1 government and the capabilities of human beings in that 
direction he is an authority as ancient as the Greek philosophers and 
as modern as the last young orator who has just discovered that this 
very comparative world is not abstractly and ideally perfect. 

What, then, were the thoughts and opinions of Abraham Lincoln 
as to the principles upon which free and ordered popular government 
should rest? He alone can tell us. No one is vested with authority 
to proclaim to us what Lincoln thought or believed upon any subject. 
There is no high priest at that altar to utter oracles which no one 
else can question and which he alone can interpret. Lincoln's 
convictions and opinions are to be found in only one place, in his own 
speeches and writings, which, like his fame, belong to his country- 
men and to mankind. Fortunately we need not grope about to 
discover his meaning. Few men who have ever lived and played 
a commanding part in the world have had the power of expressing 
their thoughts with greater clearness or in a style more pellucid and 
direct than Lincoln. Of him it may truly be said that his state- 
ments are demonstrations. You will search far before you will 
find a man who could state a proposition more irresistibly, leaving 
no avenue of escape, or who could use a more relentless logic than 
the President of the Civil War. We feel as we read his life that 
he had in him the nature of a poet, the imagination which pertains 
to the poetic nature and which was manifested not only in what 
he said and did but in his intuitive sympathy with all sorts and 
conditions of men. Combined with these attributes of the poetic 



THE DEMOCRACY OF ABRAHAM LINCOLN. 5 

genius, which is as rare as it is impalpable, were qualities seldom 
found in that connection. He was an able lawyer and bad the 
intellectual methods of the trained legal mind. He was also the 
practical man of affairs and the great statesman, looking at facts 
with undazzled eyes and molding men and events to suit his pur- 
pose. There is no occasion for guesswork, assertion, or speculation 
in regard to him when he turned away from the visions of the imagi- 
nation to confront and deal with the hard problems of life and 
government, never to any man harder than they were to him. 

Let us then examine his writings and speeches and see what light 
they throw upon the questions now subject to public discussion 
which relate to the Constitution of the United States and to the 
principles upon which that great instrument was based. 

Let me remind you at the outset that I am going to deal only with 
the fundamental principles of government embodied in the Constitu- 
tion and not at all with the many provisions which simply establish 
the machinery or mechanism by which the government is to be carried 
on. It is important to keep this distinction in mind, for it is fre- 
quently lost sight of and the ensuing confusion is deleterious to intel- 
ligent comprehension. The mechanism of government may be very 
important and a change in it may be either beneficent or unfortunate 
but it is not vital, whereas il the fundamental principles are altered, 
weakened, or abandoned the whole structure will come crashing to the 
ground. For example: To change the method of electing Senators 
may be harmful or beneficial yet it is in reality only a change of 
mechanism. But to abandon the equal representation of the States 
in the Senate is a vital and destructive change of principle, for the 
extinction of the States would mean the extinction of our govern- 
mental system and would involve in its ruin the basic principle of 
local self-government. The number of judges in the Supreme Court 
is a matter of machinery and expediency. But the appointment 
and tenure of those judges embody principles which go to tin 1 very 
root ol all ordered and stable government. 

It is on questions of principle alone that 1 would seek to learn 
the opinions of Lincoln, and before entering upon that inquiry let 
me define the questions upon which it seems to me well that we 
should seek his guidance at this time. They are two in number- 
representative government as involved in the agitation in favor 
of the compulsory initiative and referendum; and the independence 
of the courts, which is at stake in the demand for the recall of judges 
and the review of judicial decisions by popular vote. In an attempt 
to set forth Lincoln's opinions upon these questions it would be 
impossible to consider the arguments for or against these two propo- 
sitions, for each one by itself requires a discussion of great length 
and elaboration. I shall make no effort to show that the com- 
pulsory initiative and referendum, so loudly demanded in the name 
of the people, is in essence a plan to secure not the rule of the people 
but arbitrary government by small, highly organized and irresponsible 
minorities of voters. Nor shall I try to demonstrate that the judicial 
recall and the review of judicial decisions by popular vote would no 
only, like the compulsory initiative and referendum, establish the 
power of highly organized minorities among the voters, but would 
also give us servile and subservient courts controlled by an outside 
force and therefore incapable of honestly interpreting the law and 



b THE DEMOCEACY OF ABRAHAM LINCOLN. 

doing justice between man and man. I will, however, pause long 
enough to point out that both schemes lead consciously or uncon- 
sciously to the same result. If successful, they would bring us to 
a government composed of the Executive and the voters. It is 
inevitable that this should be the case, for if you reduce to impotency 
the representative and judicial branches of the Government nothing 
remains but the voters and the Executive. The last conspicuous 
example of this kind of government was the second empire in France. 
By a vote of over seven millions to two hundred and fifty thousand 
Napoleon was made emperor. On May 8, 1870, his constitutional 
changes, continuing the Empire on a more liberal basis, were sus- 
tained by a vote of over seven millions to a million and a half, and 
within six months after this immense expression of popular approval 
his Empire had crumbled into ruins and he was himself a prisoner in 
Germany. The result of this form of direct democracy was not 
happy in that instance at least. And at bottom the question is 
between direct democracy on the one hand and self-limited democ- 
racy on the other. The first is very old, the second very new, dating, 
on a large scale at least, only from our own Constitution of 1787, 
which Lord Acton speaks of as an achievement in the way of self- 
limitation which men had up to thai time regarded as impossible. 

I have no intention of discussing the merits or demerits of the two 
systems, but the fact that direct democracy is old and our self- 
limited democracy is new must not be forgotten. When it is proposed 
to emasculate representative government, as was done by the third 
Napoleon, or to take from the courts their independence, it ma} T be 
a change for the better, as its advocates contend, because almost 
anything human is within the bounds of possibility, but it is surely 
and beyond any doubt a return from a highly developed to a simpler 
and more primitive stage of thought and government. A system of 
government which consists of executive and people is probably the 
very first ever attempted by men. Among gregarious animals we 
find the herd and its leader, and that was the first form of govern- 
ment among primitive men, if we may trust the evidence of those 
tribes still extant in a low state of savagery who alone can give us 
an idea of the social and political condition of prehistoric man. _ Mr. 
Andrew Lang, in Custom and Myth, to illustrate a very different 
subject, says (p. 237): 

Even among those democratic paupers, the Puegians, "the doctor- wizard of each 
party has much influence over his companions." Among those other democrats, the 
Eskimo, a class of wizards called Angakuts, become "a kind of civil magistrates," 
because they can cause fine weather and can magically detect people who commit 
offenses. Thus the germs of rank in these cases are sown by the magic which is fetich- 
ism in action. Try the Zulus: "The heaven is the chief's;" he can call up clouds 
and storms, hence the sanction of his authority. In New Zealand every Rangatira 
has a supernatural power. If he touches an article, no one else dares to approach it 
for fear of terrible supernatural consequences. A head chief is "tapued an inch thick 
and perfectly unapproachable." Magical power abides in and emanates from him. 
By this superstition an aristocracy is formed and property (the property, at least, of 
the aristocracy) is secured. Among the red Indians, as Schoolcraft says, "priests 
and jugglers arc the only persons that make war and have a voice in the sale of the 
land." Mr. E. W. Robertson says much the same thing about early Scotland. If 
Odin was not a god with the gifts of a medicine man and did not owe his chiefship to 
his talent for dealing with magic, he is greatly maligned. The Irish Brehons also 
sanctioned Legal decisions by magical devices, afterwards condemned by t he church. 
Among the Zulus "the [tonyo (spirit) dwells with the great man; lie who dreams is 
the chief of the village." The chief alone can "read in the vessel of divination." 
The Kaneka chiefs are medicine men. 



THE DEMOCRACY OF ABRAHAM LINCOLN. 7 

The chiefs here described derive their authority from the popular 
belief in their magic powers, but the germ of government which is 
apparent is that of people and executive. Out of these wizards and 
medicine men, these chiefs protected by the "tabu," came the king, 
as Mr. Frazer shows in his "Early History of the Kingship." The 
machinery was constant v elaborated and perfected as the centuries 
passed and the king steadily absorbed more power, as was inevitable, 
but the system remained in essence the executive and the people. 
On the other hand, we may study experiments hi direct democracy 
in Athens and in Home more than 2,000 years ago and at a later time 
in some of the mediaeval Italian cities. This examination will reveal 
the fact that representative government on a large scale is a modern 
development originating in Eng'and. and also that while the people 
began long ago to p'ace limitations on the once unrestrained power 
of the crown or the kingship it was in our Constitution thai a people 
for the first time put limitations upon themselves, which has hitherto 
been considered an evidence of unusual intelligence and of a high 
civilization. I have ventured upon this digression because it seems 
to me important to emphasize the fact that these efforts to get rid of 
representative government and the independence of the judiciary, 
whether good or bad, are not attempts to advance from what we 
now have, but to rev?rt to earlier and more primitive forms of social 
and political organizations. This point of reversion to earlier forms 
so far as it relates to the courts has never been more vividly and 
strongly stated than by Mr. Roosevelt in an article upon the Vice 
Presidential candidates, which he contributed to the Review of 
Reviews in November, 1896 (p. 295 c 

The men who object to whal they style "government by injunction " are. as regards 
the essential principles of government, in hearty sympathy with their remote skin- 
clad ancestors, who lived in caves, fought one another with stone-headed axes, and 
ate the mammoth And woolly rhinoceros. They are interesting as representing a 
geological survival, but they are dangerous whenever there is the least chance of 
their making the principle! of this ages-buried past living factors in our presen! life. 
They are not in sympathy with men of good minds and sound civic morality. 



Furthermore, the Chicago convention attacked the Supreme Court. Again, this 
represents a species of atavism. — that is, of recurrence to the ways of thought of remote 
barbarian ancestors. Savages do not like an independent and upright judiciary. 
They want the judge to decide their way, and if he does not they want to behead bin:. 
The Populists experience much (he same emotions when they realize thai 'he judi- 
ciary stands between them and plunder. 

Let us now examine what Lincoln said or wrote and try to deter- 
mine whether he stood for the new or the old, for self-limited or for 
direct and unlimited democracy with especial reference to the 
two points of government by representation and judicial independ- 
ence. On one most memorable occasion Lincoln told the world 
what the Government was for which the people whom he led were 
pouring out their treasure and offering up their lives. I will not 
use my own words to describe what he then said but those of an 
impartial English historian. 

One of them (these '-beautiful cemeteries"), on the Held of Gettysburg, will be 
dear to Anglo-Saxons for all time, because it inspired the famous two minutes' speech 
which is. perhaps; the most perfect example in our language of what such a speech 
on such an occasion should be. 1 



1 The History of Twenty-five Vears, by Sir Spencer Walpole. Vol. 11, p. 67. 



8 THE DEMOCRACY' OF ABRAHAM LINCOLN. 

1 will read to you the Gettsyburg speech thus characterized by 
Sir Spencer Walpole. Only a portion relates to our subject, but 
that speech can not be read or repeated too often by Americans, 
and there never has been a time since the hour of its utterance when 
it should be more reverently and thoughtfully pondered by all 
who love their country than in these days now passing over us. 
It was on the 1 * » 1 1 i of November, 1863, a little more than four months 
after the great battle, that he spoke as follows in dedicating the 
national cemetery at Gettysburg: 

Fourscore and seven years ago our lathers brought Eorth on this continent a new 
Nation, conceived in liberty, and dedicated to the proposition that all men are created 
free and equal. 

Now we are engaged in a great civil war, testing whether that Nation, or any nation 
so conceived and so dedicated, can long endure. V\'e are met on agreat battlefield 
of that war. We have come to delicate a portion of that held as the final resting 
place for those who here gave their lives that the Nation might live. It is altogether 
fitting and proper that we should do this. 

But, in a larger sense, we can not dedicate, we can not consecrate, we can not 
hallow this ground. The brave men. living and dead, who struggled here have con- 
secrated it far above our poor power to add or detract. The world will little note 
nor long remember what we say here, but it can never forget what they did here. 
It is for us, the living, rather, to he dedicated here to the unfinished work which they 
who fought here have thus far so nobly advanced. It is rather for us to be here ded- 
icated to the great task remaining before us— that from these honored dead we take 
increased devotion to that cause for which they gave the last full measure of devo- 
tion; that we here highly resolve that these dead shall not have died in vain; that 
this Nation, under God, shall have a new birth of freedom; and that government of 
the people, by the people, for the people, shall not perish from the earth. 

The last sentence is the one which concerns us here. What Gov- 
ernment did he refer to in those closing lines as the one for which 
the soldiers died and to the preservation of which he asked his 
countrymen to dedicate themselves? It was the Government of 
the United States. It could have been no other. His own title 
was President of the United States; the uniform which the soldiers 
wore and the flag they followed were the uniform and the flag of 
the United States of America. lie defined this Government to 
which he gave his life as a "government of the people, by the people 
and for the people." This famous definition, familiar in our mouths 
us household words, was applied to the Government of the United 
States as created, established, and conducted by and under the 
Constitution adopted in 1789. With the exception of the three 
war amendments, and those just adopted, establishing the income 
tax and the election of Senators by popular vote, it is the same 
Constitution and the same Government to-day that it was in 
November, 1863. Lincoln thought it a popular government. 
He did not regard it as a government by a President, or by a 
Congress, or by judges, but as a government of, by, and for the 
people, and in his usual fashion he stated his proposition so clearly 
and with such finality that there 4 is no escape from his meaning. 
We might well !><• content to stop here and, accepting Lincoln's 
definition, stand upon his broad assertion of the character of our 
Government and look with suspicion upon those who in the name of 
the people seek to tear down that Constitution which has given us 
what he declared to be in the fullest sense a government of the people. 
Even if we could conceive that he was mistaken, I for one should still 
feel that it would be — 

Better to err with Pope than shine with Pye. 



THE DEMOCRACY OF ABRAHAM LINCOLN. 9 

But it is neither necessary nor desirable to stop with the Gettys- 
burg speech, for it is important to learn, if we can, in more detail 
what. Lincoln thought of the limitations established by the Constitu- 
tion with especial reference to the principle of representation and the 
power of the courts. Very early in his career, when he was not vet 
27 years of age, he said in an address before the Young Men's Lyceum 
at Springfield, 111., on January 27, 1837: 

We find ourselves under the governmenl of a system of political ins! itutions conduc- 
ing more essentially to the ends of civil and religious liberty than any of which the 
history of former times tells us. * * * Theirs was the task (and nobly they per- 
formed it) to possess themselves, and through themselves us, of this goodly land, and 
to uprear upon its hills and its valleys a political edifice of liberty ami equal rights; 
'tisours only to transmit these — the former unprofaned by the fool of an invader, the 
latter undecayed by the lapse of time and untorn by usurpation in the latest genera- 
tion that fate shall permit the world to know. * * * 

At what point, then, is the approach to danger to be expected? 1 answer: If it 
ever reach us, it must spring up among us; it can not come from abroad. If destruc- 
tion be our lot, we must ourselves be its author and finisher. As a nation of freemen 
we must live through all time, or die by suicide. 

In these sentences we see at once that the great style of the Gettys- 
burg address and of the second inaugural is still undeveloped, that 
the power of expression so remarkable in later years has not yet been 
found; but the conviction as to the character of our Government, 
which attained its final form at Gettysburg, is here and the closing 
words warning us that destruction of our Government can come only 
from ourselves demand our attention now as insistently as when they 
were uttered by an obscure young man in Illinois looking far into the 
future and thereupon passed over unheeded b} r a careless world. 

Such, then, was Lincoln's belief in the character of our Govern- 
ment at the outset of life, and such it continued to the end, as I shall 
show later. Upon the two particular points which we have now 
under consideration he had, owing to the circumstances of his time, 
a good deal to say about the courts and very little in express form 
about representative government, because nobody in his day ques- 
tioned the representative system. But representative government 
rests upon certain broad principles in regard to which Lincoln spoke 
clearly and decisively. The basic theory of representative govern- 
ment is that the representative body represents all the people, and 
that a majority of that body represents a majority of all the people. 
To the majority in Congress the power of action is committed and it 
is so guarded as to exclude so far as human ingenuity can do it any 
opportunity for the control of the Government by an organized minor- 
ity either among the voters or their representatives. It is these very 
provisions for securing majority rule which have led to the develop- 
ment of such devices as the compulsory initiative and referendum in 
order that organized minorities of voters may gain a power of con- 
trol which they could not obtain under a purely representative 
government. 

Having thus established majority rule through the representative 
system, the framers of the Constitution, with their deep-rooted dis- 
trust of uncontrolled power anywhere, then proceeded to put limita- 
tions upon the power of the majority. They were well aware that a 
majority of the voters at any given moment did not necessarily rep- 
resent the enduring will of the people. They knew equally well that 
in the end the real will of the people must be absolute, but they 



10 THE DEMOCRACY OF ABRAHAM LINCOLN. 

desired that tkere should be room for deliberation and for second 
thought and that the rights of minorities and of individuals should 
be so far as possible protected and secured. Hence the famous lim- 
itations of the Constitution. I need not rehearse them all; the most 
vital arc 1 those embodied in the first 10 amendments which constitute 
a bill of rights, the rights of men, or human rights, and any violation 
of those rights is forbidden to Congress and to the majority. As 
restraints upon the majority they gave the Executive a veto, which 
raised the necessary majority for action to two-thirds, while upon the 
courts they conferred by implication authority to make any law void 
and of no effect if it was in violation of the general principles laid down 
by the Constitution. Upon this point of limitation upon the majority, 
whether of voters or representatives, which is the essence of our con- 
stitutional system of representation, Lincoln spoke in a manner which 
can not be misunderstood. He said in the first inaugural: 

If by the mere lone of numbers a majority should deprive a minority of any clearly 
written constitutional right, it might, in a moral point of view justify revolution — 
certainly would if such a right were a vital one. But such is not the case. All the 
vital rights of minorities and of individuals are so plainly assured to them by affirma- 
tions and negations, guarantees and prohibitions, in the Constitution that controversies 
never arise concerning them. * * * 

A majority held in restraint by constitutional checks and limitations, and always 
changing easily with deliberate changes of popular opinions and sentiments, is the 
only true sovereign of a free people. 

Nothing could be clearer than these sentences. In Lincoln's opin- 
ion the violation of a vital constitutional right was moral justification 
for revolution, and the last sentence gives a definition of free and 
real popular government upon which it would be difficult indeed to 
improve. 

I have just said that one of the checks placed upon the power 
of the majority was the authority which of necessity devolved 
upon the courts to declare any law. which in their opinion violated 
the Constitution, unconstitutional and therefore void. It is this 
judicial power which has led to the present movement to destroy 
the independence of the courts by subjecting the judges to the 
recall and their decisions to review at the ballot box. On this point 
Lincoln spoke often and with great elaboration. He did so because 
the famous Died Scott case was a very burning issue in the years 
immediately preceding the Civil War. If an opinion was ever 
delivered by a court which justified resistance to or an attack upon 
the judicial authority it was this one known by the name of a poor 
negro — Dred Scott. The opinion against which the conscience of 
men revolted did not decide the case. It was an obiter dictum. 
It was delivered solely for the purpose of settling a great political 
question by pronouncement from the Supreme Court. There was 
no disguise as to what was intended. Mr. Buchanan, informed 
as to what was coming after his arrival in Washington, announced 
in his inaugural that the question of slavery in the Territories 
would soon be disposed of by the Supreme Court. The wise practice 
of the Supreme Court is to decline jurisdiction of political questions, 
holding that such questions belong solely to Congress and the 
Executive. In this case the court deliberately traveled outside 
the record in order to speak upon a, purely political question which 
then divided the whole country. For such action there is no defense. 



THE DEMOCRACY OF ABRAHAM LINCOLN. 11 

Born of the passions of the slavery contest, the Dred Scott case 
stands in our history as a flagrant attempt by the Supreme Court 
to usurp power. There has been nothing like it before or since. 
The lesson of that gigantic blunder was learned thoroughly and 
will never be forgotten by the court at least. The attack upon the 
dictum of the court began with the masterly dissenting opinion of 
Mr. Justice Curtis, which wrecked Taney's argument, both in the 
law and the facts. From the courtroom the attack spread over 
the country and the utterances of the Chief Just ice were assailed 
with all the bitterness characteristic of that period and defended 
with equal fervor by those who supported slaver) - and who declared 
that a refusal to accept the decision was tantamount to treason. 
Lincoln, as one of the leaders of the new Republican Party, was 
obliged to deal with it. He did so fully and thoroughly. All thai 
he said deserves careful study, for there is no more admirable analy- 
sis of the powers of the courts and of the attitude which should be 
taken in regard to them. I shall make no excuse for quoting what 
he said, at length, and I may add that his utterances on this great 
question required neither explanation nor commentary from me 
or anyone else. I will begin, however, with a protest against a 
bill for the reorganization of the judiciary, signed by Lincoln as a 
member of the Illinois Legislature. These resolutions, which 
Lincoln drafted 1 show what his general views were as to the courts 
many years before the Dred Scott decision. The important por- 
tion of them runs as follows: 

For reasons thus presented, and for others no less apparent, the undersigned can qo1 
assent to the passage of the bill, or permit it to become a law, without this evidence of 
their disapprobation; and they now protest against the reorganization of the judiciary, 
because: (1) It violates the great principles of free government by subjecting the 
judiciary to the legislature; (2) it is a fatal blow at the independence of the judges and 
the constitutional term of their office; (3) it is a measure not asked for or wished for 
by the people; (4) it will greatly increase the expense of our courts, or else greatly 
diminish their utility; (5) it will give our courts a political and partisan character, 
thereby impairing public confidence in their decisions; (6) it will impair our standing 
with other States and the world. * * * 

(Signed by 35 members, among whom was Abraham Lincoln.) 

It will be observed that the first two objections state in the strongest 
terms the principle of the independence of the judiciary and declare 
that this great principle is violated by subjecting the judiciary to the 
legislature, the representatives of the people. In this case it hap- 
pened to be the legislature, but the principle is that the courts 
should not be subjected to any outside control or influence, whether 
that control comes from the executive, the legislature, or the voters. 

Holding these principles, Lincoln 16 years later was brought face 
to face with the Dred Scott opinion, and this is how he dealt with it, 
a little more than three months after it was delivered, in a speech at 
Springfield, 111., on June 26, 1857: 

He (Senator Douglas) denounces all who question the correctness of that decision, 
as offering violent "resistance to it. Hut who resists it? Who has. in spite of the 
decision, declared Dred Scott free and resisted the authority of his master over him? 

Judicial decisions have two uses— first . to absolutely determine the case decided, 
and secondly, to indicate to the public how other similar cases will be decided when 
they arise. 'For the latter use. they are called "precedents" and "authorities." 

We believe as much as Judge Douglas ( perhaps more) in obedience to, and reaped for, 
the judicial department of the Government. We think its derisions on constitutional 

1 Life of Lincoln: Hay and Nieolay, vol. 1, p. 104. 



12 THE DEMOCRACY OF ABRAHAM LINCOLN. 

questions, when fully settled, should control not only the particular cases decided, but the 
ml policy of the country, subject to be disturbed only by amendments of the Constitution 
as provided in that instrument itself. More than this would be revolution. But we think 
the Dred Scott decision is erroneous. We know the court that made it has often 
i >\ erruled its own decisions, and we shall do what we can to have it overrule this. We 
offer no resistance to it. 

.Judicial decisions are of greater or less authority as precedents according to circum- 
stances. That this should be so accords both with common sense and the customary 
understanding of the legal profession. 

If this important decision had been made by the unanimous concurrence of the 
judges, and without any apparent partisan bias, and in accordance with legal public 
expectation and with the steady practice of the departments throughout our history 
and had been in no part based on assumed historical facts, which are not really true; 
or, if wanting in some of these, it had been before the court more than once, and had 
there been affirmed or reaffirmed through a course of years, it then might be, perhaps 
would be, factious, nay, even revolutionary, not to acquiesce in it as a precedent . 

But when, as is true, we find it wanting in all these claims to the public confidence, 
it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having 
yet quite established a settled doctrine for the country. 

Contrast these calm words, uttered under the greatest provocation, 
with, the violent attacks now made on the courts for two or three 
decisions which are in no respect political and which are as nothing 
compared to the momentous issue involved in the Dred Scott case 
where the freedom of human beings and the right of the^ people to 
decide upon slavery in the Territories were at stake. There is not a 
proposition which is not stated with all Lincoln's unrivaled lucidity 
and there is not the faintest suggestion of breaking down the power 
of the courts or of taking from them their independence. 

A year later, just before the great debate with Douglas, but when 
that debate had in reality begun, Lincoln, at Chicago on July 10, 
1858, again took up the Dred Scott case and spoke as follows: 

I have expressed heretofore, and I now repeat, my opposition to the Dred Scott 
decision; but I should be allowed to state the nature of that opposition, and I ask 
your indulgence while I do so. What is fairly implied by the term Judge Douglas 
has used: "Resistance to the decision"? I do not resist it. If I wanted to take Dred 
Scott from his master, I would be interfering with property, and that terrible difficulty 
tint Judge Douglas speaks of, of interfering with property, would arise. But I am 
doing no such thing as that ; all that I am doing is refusing to obey it as a political rule. 
If I were in Congress, and a vote should come up on a question of whether slavery 
should be prohibited in a new territory, in spite of the Dred Scott decision I would 
vote that it should. 

That is what I would do. Judge Douglas said last night that before the decision he 
might advance his opinion, and it might be contrary to the decision when it was 
made; but after it was made he would abide by it until it was reversed. Just so. We' 
let this property abide by the decision, but we will try to reverse that decision. We 
will try to put it where Judge Douglas would not object, for he says he will obey it 
until it is reversed. Somebody has to reverse thai decision, since it is made; and we 
mean to reverse it, and we mean to do it peaceably. 

What are the uses of decisions of courts? They have two uses. As rules of property 
they have two uses. First, they, decide upon the question before the court. They 
decide in this case that Dred Scott is a slave. Nobody resists that. Not only that, 
but they say to everybody else that persons standing just as Dred Scott stands are as 
lie is. That is, they say that when a question comes up upon another person, it will 
be so decided again, unless the court decides in another way, unless the court over- 
rules its decision. Well, we mean to do what we can to have the court decide the other 
way. That is one thing we mean to try to do. 

Again, in a speech at Springfield, 111., on July 17, 1858, he said: 

Now as to the Dred Scott decision, for upon that he makes his last point at me. 
lie boldly takes ground in favor of thai decision. This is one-half the onslaught and 
one-third of the entire plan of the campaign. I am opposed to that decision in a 
certain sense, hut not in (he sense which lie puts on it. I say that in so far as it decided 
in favor of Dred Scott's masterand against Dred Scott and his family I do not propose 
n> disturb or resist the decision. 



THE DEMOCRACY OF ABRAHAM LINCOLN. 13 

I never have proposed to do any such thing. I think thai in reaped for judicial 
authority my humble history would not suffer in comparison with that of Judge 
Douglas. He would have the citizens conform his vote to that decision; the Membei 
of Congress, his; the President, his use of the veto power. Be would make it a rule of 
political action for the people and all the departments of the Government. F would 
not. By resist ingil as a political rule I disturb no right of property, create no disorder, 
excite no mobs. 

In some notes for speeches, which the editors date October 1, 1858 
( ?), we find this fragment, which is of great interest because it shows 
how strongly Lincoln felt that the Dred Scott case could be dealt with 
and set aside under the Constitution without amending that instru- 
ment or seeking to break down the independence of the courts. The 
note runs as follows: 

That burlesque upon judicial decisions and slander and profanation upon the 
honored names and sacred history of republican America must be overruled and 
expunged from the books of authority. 

To give the victory to the right, not bloody bullets, but peaceful ballots only are 
necessary. Thanks to our good old Constitution and the organization under it, these 
alone are necessary. It only needs that every right-thinking man shall go to the polls 
and without fear or prejudice vote as he thinks. 

Again, in the joint debate at Quincy, 111., on October 13, 1858, he 
said: 

We do not propose that when Dred Scott has been decided to be a slave by the court 
we, as a mob, w T ill decide him to be free. We do not propose that, when any other one 
or one thousand shall be decided by that court to be slaves, we will in any violent way 
disturb the rights of property thus settled; but we nevertheless do oppose that decision 
as a political rule which shall be binding on the voter to vote for nobody wdio thinks 
it wrong, which shall be binding on the Members of Congress or the President to favor 
no measure that does not actually concur with the principles of that decision. We do 
not propose to be bound by it as a political rule in that way. because we think it lays 
the foundation not merely of enlarging and spreading out what we consider an evil. 
but it lays the foundation for spreading that evil into the States themselves. We 
propose so resisting it as to have it revised if we can and a new judicial rule established 
upon this subject. 

I will add this: That if there be any man who does not believe that slavery is wrong 
in the three aspects which 1 have mentioned, or in any one of them, that man is 
misplaced and ought to leave us. While, on the other hand, if there be any man 
in the Republican Party who is impatient over the necessity springing from its actual 
presence, and is impatient of the constitutional guaranties thrown around it, and 
would act hi disregard of these, he too is misplaced, standing with us. He will find 
his place somewhere else; for we have a due regard, so far as we are capable of under- 
standing them, for all these things. This, gentlemen, as well as I can give it, is a 
plain statement of our principles in all their enormity. 

He discussed the great question many times, but I will make only 
one more quotation, the passage in the first inaugural, where on the 
eve of secession and civil war he gave expression, every word weighed 
and meditated, to his opinions and intentions. On that solemn 
occasion he spoke thus of the courts: 

I do not forget the position, assumed by some, that constitutional questions are 
to be decided by the Supreme Court; nor do I deny that such decisions must be 
binding, in any case, upon the parties to a suit, as to the object of that suit, while 
they are also entitled to very high respect and consideration in all parallel cases by 
all other departments of the Government. And while it is obviously possible that 
such decisions may be erroneous in any given case, still the evil effect following it 
being limited to that particular case, with the chance that it may be overruled, and 
never become a precedent for other cases, can better be borne than could the evils 
of a different practice. At the same time, the candid citizen must confess that if 
the policy of the Government, upon vital questions affecting the whole people, is to 
be irrevocably fixed by decisions of the Supreme Court, the instant they are made, 
in ordinary litigation between the parties in personal actions, the people will have 
ceased to be their own rulers, having to that extent practically resigned then Gov- 



14 THE DEMOCRACY OF ABRAHAM LINCOLN. 

eminent into the hands of the eminent tribunal. Nor is there in this view any assault 
upon the courts or the judges. It is a duty from which they may not shrink to decide 
cases properly brought before them, and it is no fault of theirs if others seek to turn 
their decisions to political purposes. 

From these extracts we may see that Lincoln held that the courts 
had no right to lav down a rule of political action and that if they did 
so no one was hound by it. This is, indeed, the present position of the 
court itself. He said that no one should resist the decision in the 
Died Scott case, but that it was the duty of all who believed that 
doctrine contrary to freedom and to American principles to seek to 
have it overruled — not reviewed by the voters at trie ballot box, 
or changed by the recall of its authors, but simply overruled by the 
court itself. Again no one will dissent. But beyond this he did not 
go. On the contrary, he upheld the judicial authority within its 
proper domain, and there is no suggestion to be found, even under 
that bitter provocation, of any attempt to make the courts sub- 
servient to any outside power by any such device as a recall. Still 
less is there any thought of reversing the decision by a popular 
vote. On the contrary, at Qiiincy, speaking to a popular audience, 
he said, as you remember: 

We do not propose that when Dred Scott has been decided to be a slave by the 
court, we, as a mob, will decide him to be free. 

. There is no need to comment further upon the passages which 
have just been quoted. It is enough for me to say that Lincoln's 
discussion of the Dred Scott case seems to me to contain the strongest 
arguments for an independent judiciary that can be found anywhere. 
We may also be sure, I think, that Lincoln did not forget in his 
righteous indignation at the Dred Scott opinion that every slave 
who set foot on English soil became a free man by Lorel Mans- 
fielel's elecision in Somersett's case (1772) or that slavery had been 
ended in Massachusetts by a elecision of the Supreme Court of the 
State in 1783 under the sentence, that "all men are born free anel 
equal," inserted in the constitution of that State for that precise 
purpose by John Lowell. 

Passing now from the particular to the general, let me by a few 
brief ([uotations show you what Lincoln thought of our Government 
under the Constitution as a whole. In a speech at Columbus, Chio, 
on September 16, 1859, he said: 

I believe there is a genuine popular sovereignty. I think a definition of genuine 
popular sovereignty, in the abstract, would be about this: That each man shall do 
precisely as he pleases with himself, and with all those things which exclusively con- 
cern him. Applied to government, this principle woidd be, that a general government 
shall do all those things which pertain to it, and all the local governments shall do pre- 
cisely as they please in respect to those matters which exclusively concern tnem. I 
understand that this Government of the United States under which wa live is based 
upon this principle; and I am misunderstood if it is supposed that I have any war to 
make upon that principle. 

In his address at Cooper Institute, in New York, on February 27, 
1860, he said: 

Now, and here, let me guard a little against being misunderstood. I do not mean to 
say we are bound to follow implicitly in whatever our fathers did. To do so would be 
lo discard all the lights of cuirent experience — to reject all progress, all improvement. 
WIki t 1 do say is that if we would supplant tli3 opinions and policy of our fathers in any 
case, we should do so upon evidence so conclusive, and argument so clear, that even 
their great authority, fairly considered and weighed, can not stand; and most surely 
not in a case whereof we ourselves declare they understood the question better than we. 



THE DEMOCRACY OF A.BBAHAM LINCOLN. 15 

In his reply to the mayor of Philadelphia, on February 21, 1861, 

he spoke as follows: 

Your worthy mayoi has expressed the wish, in which I join with him, thai ii wen- 
convenient for me to remain in your city long enough to consult your merchants and 
manufacturers; or, as it were, to listen to those breathings rising within the consecrated 
walls wherein the Constitution of the United States, and, 1 will add, the Declaration of 
Independence, were originally framed and adopted. I assure you and your mayor thai 
I had hoped on this occasion, and upon all occasions during my life, thai I -hall do 
nothing inconsistent with the teachings of th >se holy and most sacred walls. All my 
political welfare has been in favor of the teachings thai came forth from these sacred 
walls. May my right hand forget its cunning and my tongue cleave to the roof of my 
mouth if ever I prove false to those teachings. 

So he spoke at the threshold of the great conflict. Listen to him 
now as he spoke three years later, with the war nearing ils close and 
when the hand of fate could almost be heard knocking at his door. 
On August 18, 1864, in an address to the One hundred and sixty-fourth 
Ohio Regiment, he said: 

We have, as all will agree, a free Government, where everyman has a right to be 
equal with every other man. In this grea t s1 niggle, this form of government and every 
form of human right is endangered if our enemies succeed. There is more involved in 
this contest than is realized by everyone. There is involved in this struggle the 
question whether your children and my children shall enjoy the privileges we have 
enjoyed. I say this in order to impress upon you, if you are not already so impressed, 
that no small matter should divert us from our great purpose. 

There may be some inequalities in the practical application of our system. It is 
fair that each man shall pay taxes in exact proportion to the value of his property. 
But if we should wait before collecting a tax to adjust the taxes upon each man in 
exact proportion with every other man, we should never collect any tax at all. There 
may be mistakes made sometimes; things may be done wrong, while the officers of the 
Government do all they can to prevent mistakes. But I beg of you, as citizens of this 
great Republic, not to let your minds be carried off from the great work we have 
before us. 

He said, on August 22, 1864, in his address to the One hundred and 
sixty-sixth Ohio Regiment : 

It is not merely for to-day, but for all time to come, that we should perpetuate for 
our children's children that great and free Government which we have enjoyed all our 
lives. I beg you to remember this, not merely for my sake, but for yours. I happen, 
temporarily, to occupy this White House. I am a living witness that any one of your 
children may look to come here as my father's child has. It is in order that each one 
of you may have, through this free Government which we have enjoyed, an open field 
and a fair chance for your industry, enterprise, and intelligence; that you may all 
have equal privileges in the race of life, with all its desirable human aspirations. 
It is for this the struggle should be maintained, that we may not lose our birthright— 
not only for one, but for two or three years. The Nation is worth fighting for. to secure 
such an inestimable jewel. 

And on August 31, 1864, in an address to the One hundred and 
forty-eighth Ohio Regiment, he said: 

But this Government must be preserved in spite of the acts of any man or set of 
men. It is worthy of your every effort. Nowhere in the world is presented a Gov- 
ernment of so much liberty and equality. To the humblest and pooresl amongst us 
are held out the highest privileges and positions. The presenl moment finds me at 
the White House, yet there is as good a chance for your children there as there was 
for my father's. 

With these noble words, uttered as the dark shadows of the past 
were fleeing away and the light of the coming victory was beginning 
to shine upon him, let us leave him. As at Gettysburg, over the 
graves of the dead soldiers, he declared that the great ha tile had been 
fought in order that "Government of the people, by the people, for 
the people" should not perish from the earth, so now to the living 



16 THE DEMOCRACY OP ABRAHAM LINCOLN. 

soldiers he said that nowhere in the world was presented a "Gover 
ment of so much liberty and equality." Thus, at the close, just 
at the beginning when he was a young man entirely unknown beyoi 
the confines of his village, did he speak of the Government of t 
United States under the Constitution. Thus he described his co 
ception of democracy, and that conception he found fulfilled in t 
Constitution of the United States and in the great principles 
ordered freedom and guarded rights which are there embodied. 

There is one other point alluded to by Lincoln when he defin 
"genuine popular government" which does not directly conce 
the subject 1 have been discussing, but which is of quite equ 
importance and upon which 1 wish to say a few words in closmi 
The framers of the Constitution made one great contribution 
the science of government in the application of the principle 
federation upon a scale and in a manner never before attempte 
A large part of the Constitution is devoted to the arrangement ai 
adjustment of the relations between the States and the Gener 
Government. Upon the construction of those relations, as we i 
know, parties divided and our history largely turned for more ths 
seventy years . '1 he contest was bet ween the rights of the States on tl 
one hand and the powers of the Central Government on the othe 
The conflict culminated in the Civil War and in the effort of certa 
States to break up the Union. '1 he result of the war was the pre< 
ervation of the Union and the defeat of secession. But secessio: 
or the separation of the States, is not the only way in which tl 
Union can be destroyed. The other, and no less effective, methc 
of destroying the Union is by the abolition of the States, whi« 
could be attained by reducing them to merely nominal divisioi 
and taking from them those powers and duties reserved to them I 
the Constitution and which alone make them living organisms. Tl 
first danger ended forever at Appomattox. The second is threa 
ening us, and in no obscure fashion, to-day. The growth of tl 
power of the Central Government, together with its constant assumj 
tion of new duties is in a degree inevitable and in a less degre 
no doubt, desirable. But this inevitable movement is always quit 
rapid enough and should be retarded rather than accelerated. It 
not, however, to this tendency of development that I now refer, bi> 
to something much graver and which is in its nature absolute] 
destructive. 

There is a widespread agitation in favor of having Presidem 
nominated as party candidates, not by the people of the State 
each State being allotted the number of votes to which it is entitle 
by the number of party votes cast at a previous election, but by a 
the members of the party throughout the country without referenc 
to State lines. It is further proposed, and a constitutional amenc 
ment with that object in view was pending in the Senate at the las 
session, to have the President elected by the votes of all the peopl 
instead of by the votes of the people of the States, each State havin 
two votes as a State and additional votes based on population. A* 
amendment to that effect, proposed as an addition to another cor 
stitutional amendment, was defeated in the Senate a few weeks ag. 
by a narrow majority. 

A President so nominated and elected would not be the Presiden 
of the United States, but of the American Republic, or President c 



THE DEMOCRACY OF ABRAHAM LINCOLN. 17 

the Americans, as Louis Napoleon was styled Emperor of the French, 
having been chosen by a universal plebiscite. Party principles, 
party organization, party responsibility, would all disappear. Per- 
haps in this connection it is not amiss to remember that, in a eulogy 
jpon Henry Clay, delivered in the State House at Springfield, 111., 
m July 16, 1852, Lincoln said: 

A free people in times of peace and quiet when pressed by no common danger — 
laturally divide into parlies. At such times the man who is of neither party is not, 
:'an not be, of any consequence. Mr. < lay. therefore, was of a party. 

! As usual, in discussing any subject, he laid his unerring finger upon 
a vital point. The destruction of parties and party organizations 
Would reduce the unorganized voters, acting simply as individuals, 
to a condition of helplessness. We should no longer have great 
organizations, with declared principles and established traditions, 
which could be held to strict responsibility, but simply followers of 
pertain chiefs. Those chiefs would be self-made, presidential candi- 
dates with personal manifestoes after the familiar fashion of South 
American dictators. 

But these objections, serious as they are, sink into insignificance 
when compared with the far graver results which lie behind these 
propositions. To nominate and elect Presidents by a vote of the 
whole people, without reference to State lines, would be a step, 
and a long step, toward the extinction of the States. That would 
paean the enormous exaltation of the Executive power, to which 
all these movements for the destruction of the Constitution alike 
tend. The abolition or degradation of the States would mean a 
real imperialism and not the imaginary imperialism about which many 
excellent people were quite needlessly distressed when we took 
possession of certain islands after the Spanish War. We might 
continue to call our territorial divisions States, and their chief 
sxecutive officers governors, but names are nothing and with the 
States stripped of all power they would be in reality provinces and 
their rulers prefects appointed in Washington. The abolition of 
the States would mean the loss or the ruin of the great principle of 
local self-government, which lies at the very root of free popular 
government and of true democracy. The States, within their 
[imitations and in the exercise of their proper powers, are the sheet 
anchor which keeps the ship of State from drifting helplessly upon 
the rocks of empire and of personal autocratic rule, where so many 
great nations have met untimely wreck. 

! These are no fanciful dangers, no alarms conjured up to arrest 
improvement and advance. Actual measures leading to the results 
I have described are being pressed and advocated. It is a less 
obvious, a slower, a more insidious way of destroying the Union of 
States than by open war, but if successful it is equally certain in 
its results. We should pause long and think well before we enter 
upon such changes as these, all the more perilous because they are 
plemanded in the name of the people and look harmless, perhaps, 
to those who do not stop to consider them. 

We are confronted to-day with the gravest questions which the 
American people have been called upon to decide since 1860. I do 
pot mean questions of social or economic policy, nor issues of war 

S. Doc. 18, 63-1 2 



18 THE DEMOCRACY OF ABRAHAM LINCOLN. 

or peace or foreign relations. I mean questions now pressing upon 
us which involve the very fabric of our Constitution, under which 
freedom, order, and prosperity have gone with us hand in hand. 
It is a time for careful thought, a time to tear aside the veils of 
speech and come straight to the substance of things, to facts and 
principles. Let us not at a time like this and in the presence of 
such questions be the slaves of words and phrases. In the Book of 
Judges it is written: 

Then said they unto him, "Say now 'Shibboleth.'" And he said "Sibboleth"; 
for he could not frame to pronounce it right. Then they took him and slew him at 
the passages of the Jordan. 

There has been too much of this of late, too much dependence 
on how loudly a man could shout certain words and how he pro- 
nounced the "Shibboleth" which was proposed to him. Let us get 
away from words and phrases and come down to facts and deeds. 
Before we begin to revolutionize our Constitution and its principles, 
let us know well what that Constitution is, what it means, what it 
has accomplished, and whither the changes so noisily urged will 
lead us. 

In his message to Congress on July 4, 1861, speaking of the officers 
of the Regular Army from the seceding States who had remained 
true to the Government of the Union, Lincoln said: 

This is the patriotic instinct of the plain people. They understand, without an 
argument, that the destroying of the Government which was made by Washington 
means no good to them. 

I have faith that the people to-day feel as they did then. I am 
sure that when they shall understand whither they are being led 
they will know that to impair or to destroy the Government which 
Washington made and Lincoln saved " means no good to them." 

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